Commissioners take a more aggressive stance in Dillsboro dam fight

Jackson County commissioners are contemplating drastic measures in their fight against Duke Energy to stop the Dillsboro dam from being torn down.

Jackson County commissioners decided they would be willing to condemn the dam and take it from Duke, and voted 4 to 1 vote at the county commissioners meeting Monday night (Jan. 7.) to take such a step. Before county leaders condemn the dam, they need a plan to get it up and running. So Jackson County commissioners will be placing an interesting help wanted ad this week: someone who knows how to fix up and operate a small, aging dam.

Ideally, the county wants that someone to spend their own money rehabilitating the dam and powerhouse in exchange for a lease to operate it on the county’s behalf. There are a handful of niche companies that operate small dams as business ventures. The commissioners voted 4 to 1 to solicit bids for the job.

Duke has allowed the dam and powerhouse to fall into disrepair and has quit operating it rather than spend the money to fix it, banking instead on its ultimate demise. County leaders want to preserve the dam as a historical icon and source of green power and have offered to take it off Duke’s hands. But Duke wants to demolish the dam as credit toward environmental mitigation. (see “Why all the dam talk?”)

Commissioners had called on their D.C. attorney Paul Nolan, an expert in hydropower, to come to the commissioners meeting this week and discuss strategy in their fight against Duke. For four years, Jackson County has waged a battle against Duke before the Federal Energy Regulatory Commission, the ultimate deciders in how much mitigation Duke has to cough up.

So far, the energy commission has sided with Duke’s plan to tear down the Dillsboro dam, leaving some commissioners restless about their position. That’s when Nolan floated the idea — one he said has a chance of working.

“If you really want to take control of this situation, if you feel we have played their game long enough, if the sensitivity is we can’t wait any longer and that we want to put an end to it, you go ahead and consider the condemnation,” Nolan told commissioners.

On that note, Commissioner Chairman Brian McMahan made a motion to “explore the option of condemnation.” Commissioner William Shelton seconded the motion.

Commissioner Tom Massie, the lone dissenting vote, argued that the county was wasting its time and money. Massie said he supports the fight against Duke philosophically, but said it was time to be realistic.

“I think we fought the good fight, but I don’t think we can win this,” Massie said. “I hate to see us stop at this point in time, but I am like the beer commercials: know when to say when. We are at the end of our rope and the sooner we realize it the better of we will be.”

Massie fears the county doesn’t have the money or stamina to fight Duke to the end.

“This thing will go on forever as far as I can tell,” Massie said. “When you get down to talking about condemnation, you are grasping at straws.”

McMahan disagreed.

“I happen to disagree. I think we still stand a very good chance to win this battle,” McMahan said. “I think the stakes are high. There is so much here at stake I don’t think we can afford to give up the fight.”

McMahan cited the dam’s sentimental value as a historical icon. He cited its economic value as a tourism draw. He cited its value as a green power source in the face of a looming global energy crisis. And he cited the environmental risks posed by tearing the dam down — namely the escape of backlogged sediment behind the dam. Duke has to dredge some of that sediment, but the rest — more than 30,000 cubic yards — will be sent downstream, possibly harming known endangered species below the dam, McMahan said.

For now the county will spend 30 days soliciting bids to rehabilitate and run the dam, after which the county will consider condemnation.

“I’d be willing to vote straight up or down to take it from them (Duke) because that river belongs to the people of Jackson County,” McMahan said. Commissioners William Shelton, Joe Cowan and Mark Jones sided with McMahan, leaving Massie the odd man out.

Actually winning the dam is not as simple as condemnation, however. The county would also need a permit from the Federal Energy Regulatory Commission to actually operate it. The energy commission has consistently sided with Duke in the fight so far and could refuse to grant Jackson an operating permit.

Commissioner William Shelton said at very least condemnation will force the energy commission’s hand on the issue.

“It will bring things to some resolution rather than later. This might be a way to keep up the fight on behalf of the people,” Shelton said. “In my gut, I feel like a majority of the people want to see that dam stay.”

If the energy commission doesn’t comply with Jackson County’s request, Nolan said there is one higher power: Congress. Nolan said the county could have its Congressman from the region get a federal bill passed that bypasses the energy commission and grants Jackson County an operating permit.

Speakers turn out

Many feel Duke is short-changing the region. The argument goes like this: tearing down the Dillsboro dam is not adequate mitigation to offset Duke’s profitable hydropower network spanning the region’s rivers. The dam should stay and the county should get other mitigation instead.

Several people spoke at the meeting Monday night to urge commissioners not to give up, despite their formidable foe.

“I am proud our commissioners have stood by the county citizens in this dispute with Duke Power over who should have the benefit of the river that we love and cherish so much,” said Jason Kimenker, owner of Soul Infusion restaurant. “I support the county in the role they’ve taken so far and look forward to the county’s future involvement to make sure we get what is rightfully ours.”

The sentiment was echoed repeatedly.

“Duke has bargained away this dam like a pawn in a poorly played chess game,” said Ellen Boyd, a Dillsboro merchant. “Don’t allow this utility company to play games with important energy resources.”

The dam produces little electricity in the scheme of Duke’s portfolio, but it would be enough to power all of Dillsboro. Saving green and renewable energy is one of the rallying cries for saving the dam.

“Production from many small dispersed sources will be important in our energy future,” said Tom Wilcox, a Jackson resident among the speakers Monday.

Saving a piece of history was another resounding theme among speakers, as was preserving the tourism draw of the dam.

“It is important to the tourism of Dillsboro,” said Susan Leveille, a shop owner along the Tuck in Dillsboro. “If any of you fail to understand that, come sit in the corner of my business for awhile and listen to people from out of town who have seen the dam and slowed down and stopped.”

Leveille told the commissioners not to stop now.

“I appreciate your fight against a very large entity and I hope you will continue to sustain that on our behalf,” Leveille said.

Teresa Dowd, president of the Dillsboro Merchants Association, said the merchants of Dillsboro are counting on the commissioners.

“There are economic, environmental and historical consequences to removing the dam,” Dowd said.

Not all are gung-ho about Jackson County’s fight, however.

“How much more can you afford to spend and how much more can you afford to lose?” asked Mark Singleton. “You have invested now over $150,000 of county money already.”

Singleton suggested the county should not rely solely on their hired lawyer for advice but should get a second opinion.

Nolan, the attorney, told commissioners he thought the issue is “winnable.” In addition to toying with condemnation, there are two avenues the county is perusing simultaneously, Nolan said. Both involve challenging permits Duke has received for dam demolition. One is from the Federal Energy Regulatory Commission — the decider in all things hydro related. The other is from the state water quality office (see related article.) The appeals will force the energy commission and state water quality office to take a second look at Jackson’s arguments, but a reversal seems a long shot. That leaves a federal lawsuit as the last and final option if condemnation — and getting a federal bill through the House and Senate granting Jackson rights to operate the dam — doesn’t work.

Why all the dam talk?

Duke is required to come up with environmental mitigation for its hydropower network across the region — a network that saddles five rivers with 11 dams. Duke’s operation manipulates the natural flow of the rivers and interrupts aquatic ecosystems — all the while making a profit. So in exchange, Duke has to offer up environmental mitigation. The centerpiece of Duke’s mitigation package is tearing down the Dillsboro dam, restoring a stretch of free-flowing river in the process. The mitigation package would buy Duke another 30 to 40 years of operating the dams.